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Diversity and inclusion: A look at current disclosure, challenges and improvements

Canada Publication July 8, 2020

On January 1, 2020, regulations supporting the amendments to the Canada Business Corporations Act (CBCA) regarding new diversity disclosure obligations for publicly traded corporations came into force. As discussed in a previous update, the amendments introduced a “comply or explain” regime whereby CBCA-incorporated publicly traded corporations must disclose, among other things, whether or not they have a diversity policy for their board of directors and senior management, whether or not the policy includes targets for the representation of four “designated groups” (i.e., women, Aboriginal peoples, persons with disabilities and members of visible minorities) and statistics on the representation of these groups.


Observed practices

We have reviewed the diversity disclosure of 199 CBCA-incorporated issuers, 21 of which are included in the TSX 60 index. In doing so, we have compiled the following statistics:

On the adoption of targets1 for the representation of designated groups:

Category CBCA TSX 60
Issuers that have adopted at least 1 target 41 (20.6%) 10 (47.6%)
Issuers that have adopted at least 2 targets 12 (6.0%) 5 (23.8%)
Issuers that have adopted at least 3 targets 1 (0.5%) 1 (4.8%)
Issuers that have adopted 4 targets or more 1 (0.5%) 0 (0.0%)
Issuers that have adopted target(s) for designated group(s) other than women 2 (1.0%) 1 (4.8%)
Average target for the representation of women (board) 29.1% 28.0%
Average target for the representation of women (senior exec.) 26.1% 28.8%
Proportion of targets that are already met (board) 61.0% 70.0%
Proportion of targets that are already met (senior exec.) 27.3% 0.0%

 

On the representation of women: 

Category CBCA TSX 60
Issuers with no women (board) 45 (22.6%) 0 (0.0%)
Issuers with no women (senior exec.) 53 (26.6%) 1 (4.8%)
Average current representation of women (board) 19.0% 31.0%
Average current representation of women (senior exec.) 17.1% 17.5%
Highest current representation of women (board) 50% 50%
Highest current representation of women (senior exec.) 66.7% 33.3%

 

On the representation of other designated groups:

Category CBCA TSX 60
Issuers with no member from any designated group other than women 100 (50.3%) 4 (19.0%)
Issuers with at least 1 member from a visible minority (board) 49 (24.6%) 7 (33.3%)
Issuers with at least 1 member from a visible minority (senior exec.) 70 (35.2%) 12 (57.1%)
Issuers with at least 1 Aboriginal (board) 7 (3.5%) 3 (14.3%)
Issuers with at least 1 Aboriginal (senior exec.) 5 (2.5%) 2 (9.5%)
Issuers with at least 1 person with a disability (board) 6 (3.0%) 1 (4.8%)
Issuers with at least 1 person with a disability (senior exec.) 7 (3.5%) 2 (9.5%)
Average representation of visible minorities (board) 4.7% 3.8%
Average representation of visible minorities (senior exec.) 7.4% 11.3%

 

In October 2019, the Canadian Securities Administrators (CSA) published a staff notice on the presence of women on boards of directors and in executive officer positions2, based on data from 641 issuers that had filed information circulars or annual information forms by July 31, 2019 (regardless of governing statute). 

The CSA statistics tend to reflect trends similar to the ones reproduced above. For instance, the CSA found an average of 17% of board seats were held by women, while we computed a 19% representation for women, on average, for the 199 CBCA-incorporated corporations we reviewed. With respect to adopting diversity policies, the CSA found that 50% of issuers had adopted a policy on the representation of women on their boards, while we found that 49.2% of issuers had adopted such a policy. The CSA also found that 22% of issuers had set a target for the representation of women on their boards, while we found that 20.6% of issuers had adopted such a target.

It remains to be determined whether the obligation to disclose a corporation’s diversity targets and any progress made towards their achievement, and related disclosure regarding the representation of designated groups, will have an impact on the actual representation of designated groups within boards of directors and senior management.

The challenge of self-identification

The new CBCA disclosure regime relies on self-identification. Although essential to obtain non-biased data, self-identification comes with its own set of challenges. Some directors or executives may feel uncomfortable to self-identify as a member of a designated group, even though their declaration remains confidential.

In our review of management information circulars, we observed a wide spectrum of disclosure practices on self-identification. Not all issuers specifically stated their statistics for the representation of designated groups were based on self-identification. Amongst those who did, certain issuers did not include gender, some specifically included gender, while others did not mention whether or not data on gender resulted from the self-identification of their directors and senior management. 

Successfully implementing self-identification practices is a matter of respect and culture, and it should not be underestimated: it is key to complying with the spirit of the regulations and, incidentally, with privacy laws.

Recommendations

While disclosing information on diversity is now required for publicly traded CBCA-incorporated corporations, our recent review revealed a wide range of practices on how information is disclosed. To help you navigate the new requirements, we have formulated certain recommendations based on best practices observed thus far in the market and where we see them going:

  • Go beyond comply and explain. Ensure your corporation complies with the regulations by providing extensive and accurate disclosure on your diversity practices. Avoid boilerplate language. When disclosing statistics on the representation of designated groups, specify if your data is strictly the result of directors’ and senior executives’ self-identification. To showcase progress, consider providing statistics from previous years, if available. More importantly, think holistically. Describe how your practices are geared towards inclusion.
  • Think (or rethink) your diversity policy. Consider adopting a diversity policy or reviewing your current policy in light of the recent legislative changes. In doing so, start with a gap analysis to review your corporation’s current position on diversity. Establish realistic, yet challenging targets, which may involve adopting modified targets (such as targets without a specific timeline or differently defined groups) or joint targets (for example, a target for the representation of all designated groups instead of separate targets for each group). 

    If targets for the representation of certain designated groups are not achievable at the board or senior management levels, consider focussing on internal empowerment and the talent pipeline, by adopting targets for evergreen lists and interviewed candidates, as a first step. While developing your diversity policy, beware of tokenism and consider the benefits of embracing inclusion. Keep track of how the notion evolves, within your company and generally.
  • Expect activism. In the current context, social activism has taken to the streets, but corporate activism is expected as well. As we have previously seen with the #metoo movement, a number of high-ranking officers have had to step down as evidence or allegations of discrimination emerged. Over the last few weeks, we have seen activism coming from the top as well, with directors and senior executives stating they will step down to be replaced by a member of a visible minority.3 We can expect more such initiatives in the future.
  • Adopt a protocol. In line with their fiduciary duty, board members must consider the interests of various stakeholders. Since designated groups are an integral part of the Canadian society, including the workforce and local communities, they can be seen as stakeholders of Canadian corporations as well. Boards should adopt a protocol to properly consider the interests of various stakeholders.

With the recent CBCA amendments, Canadian corporations are called upon to expand their view of diversity. In doing so, issuers should remember that diversity alone does not guarantee success. 

For instance, evidence that board diversity benefits corporations has generally been mixed, and this is in part attributable to shortcomings with respect to inclusion, a blind spot for many organizations. Indeed, "To make diverse boards more effective, boards need to have a more egalitarian culture — one that elevates different voices, integrates contrasting insights, and welcomes conversations about diversity."4 In other words, issuers should look past diversity and aim for more inclusion throughout their organizations.

This is all the more relevant considering current societal questioning on systemic racism.

The authors wish to thank Camille A. Provencher, articling student, for her contributions to this legal update.


Footnotes

1   Some issuers have adopted targets that do not comply with the regulatory criteria, for instance by omitting to specify a timeline for the completion of a target. Such targets are not compiled in our table.

4 Stephanie J. Creary et al., When and Why Diversity Improves Your Board’s Performance, Harvard Business Review (online: https://hbr.org/2019/03/when-and-why-diversity-improves-your-boards-performance), March 27, 2019.



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